24:0968(95)AR - Warner Robins Air Logistics Center, Air Force, Warner Robins, GA and AFGE Local No. 987 -- 1986 FLRAdec AR

 24 FLRA No. 95
 
 WARNER ROBINS AIR LOGISTICS CENTER 
 DEPARTMENT OF THE AIR FORCE 
 WARNER ROBINS, GEORGIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL No. 987
 Union
 
                                            Case No. O-AR-1129
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Cary J. Williams filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (Statute) and
 part 2425 of the Authority's Rules and Regulations.  The Activity did
 not file an opposition.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerns the Activity's five-day
 suspension of the grievant for leaving his work area without permission
 and for threatening a supervisor.  The dispute was submitted to
 arbitration on February 6, 1986.  At the hearing, the Union requested a
 continuance because the Union representative who had prepared the case
 had not been able to obtain official time or leave without pay in order
 to present the grievant's case.  The Activity opposed a continuance.  It
 asserted that the Union had been notified well in advance, by letter
 dated January 24, 1986, that the usual Union representative might not be
 able to obtain the necesssary leave and that the Union could have easily
 made arrangements for another representative to take his place.  The
 Arbitrator denied the continuance as not warranted by the circumstances
 because the Union had ample time to make other arrangements for the
 grievant's representation.  The grievant and Union representative,
 refused to participate in the hearing.
 
    The Arbitrator then heard evidence presented by the Activity
 pertaining to the suspension.  Noting that there was no evidence to
 rebut the testimony and evidence presented by the Activity, the
 Arbitrator found that the suspension was for just cause and denied the
 grievance.
 
                             III.  EXCEPTIONS
 
    The Union contends, generally, that the award is deficient because
 the Arbitrator held the hearing without the grievant and Union
 representative and thereby violated the principles of fairness and due
 process.  As a result, it asserts that the award is deficient because it
 was "procured by 'ex part'" and constituted harmful error.  The Union
 also argues that the Activity's actions violated the parties' collective
 bargaining agreement and constituted an unfair labor practice under the
 Statute.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We conclude that the Union's exceptions fail to establish that the
 Arbitrator's award is deficient.
 
    Although the Authority will find an arbitration award deficient if it
 is established that the arbitrator failed to conduct a fair hearing by
 refusing to hear pertinent and material evidence, for example, National
 Border Patrol Council and National Immigration and Naturalization
 Service Council and United States Department of Justice, Immigration and
 Naturalization Service, 3 FLRA 400 (1980), the Union does not establish
 that the award is deficient on this basis.  The Authority has recognized
 that an arbitrator has considerable latitude in the conduct of the
 hearing, see id. at 404.  The Union fails to substantiate that it was
 denied a fair hearing by the Arbitrator's finding that it had a
 reasonable opportunity to make other arrangements for an alternative
 Union representative to appear at the arbitral hearing.  See U.S.
 Department of Labor and American Federation of Government Employees,
 Local No. 644, NCFLL, 12 FLRA 639, 641 (1983).  Moreover, the award was
 not procured by ex parte contacts with the arbitrator since the hearing
 was conducted with the knowledge of the Union and its absence was by
 choice.  Also, awards resulting from ex parte hearings have been
 enforced by Federal courts based upon the rationale that since the
 losing party had a chance to be heard and refused to participate it
 should not now complain that the award is invalid because it chose to
 stay away.  Amal. Meat Cutters & Butcher Workmen v. Penobscot Poultry
 Co., 200 F. Supp. 879 (D. Me. 1961);  see also Joint Board of Cloak,
 Skirt and Dressmakers Union v. Senco, Inc., 289 F. Supp. 513 (D. Mass.
 1968).  There is no basis upon which to conclude that the Arbitrator's
 denial of the continuance constituted "harmful error." This rule does
 not apply to suspensions for 14 days or less instituted under section
 7503 and reliance on the rule in this five-day suspension case is
 misplaced.  Immigration and Naturalization Service and American
 Federation of Government Employees, Local 505, 22 FLRA No. 70 (1986).
 
    Finally, the Union's arguments that the Activity's actions constitute
 a violation of the parties' agreement and an unfair labor practice
 provide no basis for finding the Arbitrator's award deficient.  See
 American Federation of Government Employees, Local 3272 and Social
 Security Administration Areas VIII and XIV, Chicago Region, Branch
 Office, Holland, Michigan, 10 FLRA 310 (1982).
 
                               V.  DECISION
 
    For these reasons, the Union's exceptions are denied.
 
    Issued, Washington, D.C. December 31, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY